The staff of the Committee on Open Government is authorized to issue advisory opinions.
The ensuing staff advisory opinion is based solely upon the information presented in your
correspondence.

Dear Ms. Daughton:

I have received your letter of July 25. Please accept my apologies for the delay in
response.

As I understand your remarks, a member of the staff of the Niagara County Industrial
Development Agency ("the Agency") recently questioned the Agency's decision concerning
notification to the public prior to all committee meetings of the Agency. You wrote that the
decision to provide notice was based upon a portion of "Your Right to Know" stating that
the Open Meetings Law applies any time that a quorum of the public body convenes for the
purpose of conducting public business and added that:

"Although the Committee may only consist of three Board
members, the entire Board is invited and notified of the
Committee Meetings. Depending on the issue being
discussed, there is often a quorum present. Often times I have
no way of knowing if a quorum will be present."

You have asked how you should proceed.

In this regard, first, judicial decisions indicate generally that ad hoc entities consisting
of persons other than members of public bodies having no power to take final action fall
outside the scope of the Open Meetings Law. As stated in those decisions: "it has long been
held that the mere giving of advice, even about governmental matters is not itself a
governmental function" [Goodson-Todman Enterprises, Ltd. v. Town Board of Milan, 542
NYS 2d 373, 374, 151 AD 2d 642 (1989); Poughkeepsie Newspapers v. Mayor's
Intergovernmental Task Force, 145 AD 2d 65, 67 (1989); see also New York Public Interest
Research Group v. Governor's Advisory Commission, 507 NYS 2d 798, aff'd with no
opinion, 135 AD 2d 1149, motion for leave to appeal denied, 71 NY 2d 964 (1988)].
Therefore, an advisory body, such as a citizens' advisory committee, would not in my opinion
be subject to the Open Meetings Law, even if a member of the Board of Education or the
administration participates.

Second, however, when a committee consists solely of members of a public body,
such as the Agency, I believe that the Open Meetings Law is applicable.

By way of background, when the Open Meetings Law went into effect in 1977,
questions consistently arose with respect to the status of committees, subcommittees and
similar bodies that had no capacity to take final action, but rather merely the authority to
advise. Those questions arose due to the definition of "public body" as it appeared in the
Open Meetings Law as it was originally enacted. Perhaps the leading case on the subject also
involved a situation in which a governing body, a school board, designated committees
consisting of less than a majority of the total membership of the board. In Daily Gazette Co.,
Inc. v. North Colonie Board of Education [67 AD 2d 803 (1978)], it was held that those
advisory committees, which had no capacity to take final action, fell outside the scope of the
definition of "public body".

Nevertheless, prior to its passage, the bill that became the Open Meetings Law was
debated on the floor of the Assembly. During that debate, questions were raised regarding
the status of "committees, subcommittees and other subgroups." In response to those
questions, the sponsor stated that it was his intent that such entities be included within the
scope of the definition of "public body" (see Transcript of Assembly proceedings, May 20,
1976, pp. 6268-6270).

Due to the determination rendered in Daily Gazette, supra, which was in apparent
conflict with the stated intent of the sponsor of the legislation, a series of amendments to the
Open Meetings Law was enacted in 1979 and became effective on October 1 of that year.
Among the changes was a redefinition of the term "public body". "Public body" is now
defined in §102(2) to include:

"...any entity for which a quorum is required in order to
conduct public business and which consists of two or more
members, performing a governmental function for the state or
for an agency or department thereof, or for a public
corporation as defined in section sixty-six of the general
construction law, or committee or subcommittee or other
similar body of such public body."

Although the original definition made reference to entities that "transact" public business, the
current definition makes reference to entities that "conduct" public business. Moreover, the
definition makes specific reference to "committees, subcommittees and similar bodies" of a
public body.

In view of the amendments to the definition of "public body", I believe that any entity
consisting of two or more members of a public body, such as a committee or subcommittee
consisting of members of the Agency, would fall within the requirements of the Open
Meetings Law, assuming that a committee discusses or conducts public business collectively
as a body [see Syracuse United Neighbors v. City of Syracuse, 80 AD 2d 984 (1981)].
Further, as a general matter, I believe that a quorum consists of a majority of the total
membership of a body (see e.g., General Construction Law, §41). Therefore, if, for example,
the Agency consists of seven, its quorum would be four; in the case of a committee consisting
of three, a quorum would be two.

When a committee is subject to the Open Meetings Law, I believe that it has the same
obligations regarding notice and openness, for example, as well as the same authority to
conduct executive sessions, as a governing body [see Glens Falls Newspapers, Inc. v. Solid
Waste and Recycling Committee of the Warren County Board of Supervisors, 195 AD 2d 898
(1993)].

In sum, assuming that the committees in question consist of two or more members of
the Agency, those committees would constitute public bodies subject to the Open Meetings
Law and a quorum of those bodies would be a majority of the membership of the committees.

I hope that I have been of assistance. Should any further questions arise, please feel
free to contact me.